[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Proposed Rules]
[Pages 46804-46811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15174]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 10 and 11

[PS Docket Nos. 15-94 and 15-91; FCC 21-77; FR ID 37636]


Emergency Alert System, Wireless Emergency Alerts; National 
Defense Authorization Act for Fiscal Year 2021

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission (the 
FCC or Commission) seeks comment on several recommendations made by the 
Federal Emergency Management Agency (FEMA) to revise the Emergency 
Alert System (EAS) rules to delete outdated references, re-name certain 
EAS terms to enhance public awareness, and update EAS capabilities for 
alerts that are persistent during certain extreme emergencies.

DATES: Comments are due on or before October 19, 2021, and reply 
comments are due November 18, 2021.

ADDRESSES: You may submit comments, identified by PS Docket Nos. 15-94 
and 15-91, by any of the following methods:
    <bullet> Federal Communications Commission's Website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    <bullet> Mail: Parties who choose to file by paper must file an 
original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by commercial overnight courier, 
or by first-class or overnight U.S. Postal Service mail. All filings 
must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission. Commercial overnight mail 
(other than U.S. Postal Service Express Mail and Priority Mail) must be 
sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal 
Service first-class, Express, and Priority mail must be addressed to 45 
L Street NE, Washington, DC 20554.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: David Munson, Attorney Advisor, Public 
Safety and Homeland Security Bureau at 202-418-2921 or 
<a href="/cdn-cgi/l/email-protection#7135100718155f3c041f021e1f311712125f161e07"><span class="__cf_email__" data-cfemail="3c785d4a5558127149524f53527c5a5f5f125b534a">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order and Further Notice of Proposed Rulemaking (R&O and FNPRM), in 
PS Docket Nos. 15-94 and 15-91, FCC 21-77, adopted and released on June 
17, 2021. The full text of this document is available at https://www.fcc.gov/document/fcc-further-strengthens-emergency-alerting-0.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
    <bullet> Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    <bullet> Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, 
and Priority mail must be addressed to 45 L Street NE, Washington, DC 
20554.
    <bullet> Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#21474242141115614742420f464e57"><span class="__cf_email__" data-cfemail="53353030666367133530307d343c25">[email protected]</span></a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
    The proceeding the FNPRM initiates shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules, 47 CFR 1.1200 et seq. Persons making ex parte presentations must 
file a copy of any written presentation or a memorandum summarizing any 
oral presentation within two business days after the presentation 
(unless a different deadline applicable to the Sunshine period 
applies). Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentation must (1) list all persons 
attending or otherwise participating in the meeting at which the ex 
parte presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and

[[Page 46805]]

must be filed consistent with rule 1.1206(b). In proceedings governed 
by rule 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

Synopsis

    In the Further Notice of Proposed Rulemaking (FNPRM), the 
Commission seeks comment on several recommendations made by FEMA for 
revising the EAS rules to enhance its functionality. Specifically, the 
Commission seeks comment on FEMA's proposed rule changes recommending: 
(i) Deleting the National Information Center (NIC) event code from part 
11 of the Commission's rules; (ii) replacing the EAS originator code 
for the ``Primary Entry Point System,'' from ``PEP,'' to ``NAT,'' which 
would stand for ``National Authority''; (iii) either modifying the 
definition for the Emergency Action Notification (EAN) event code from 
``Emergency Action Notification (National Only),'' to ``Emergency 
Alert, National,'' or replacing the EAN event code with a new event 
code called ``NEM,'' defined as ``National Emergency Message''; and 
(iv) considering methods to update the EAS to ``support persistent 
display of alert information and/or persistent notification for 
emergencies that require immediate public protective actions to 
mitigate loss of life.''

Paperwork Reduction Act of 1995 Analysis

    The FNPRM may contain new or modified information collection(s) 
subject to the Paperwork Reduction Act of 1995 (PRA). If the Commission 
adopts any new or modified information collection requirements, they 
will be submitted to the Office of Management and Budget (OMB) for 
review under section 3507(d) of the PRA. OMB, the general public, and 
other federal agencies will be invited to comment on the new or 
modified information collection requirements contained in this 
proceeding. In addition, pursuant to the Small Business Paperwork 
Relief Act of 2002, the Commission seeks specific comment on how it 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on a 
substantial number of small entities by the policies and rules proposed 
in the FNPRM. Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments on the Notice. The Commission will send a 
copy of the FNPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
NPRM and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    In the FNPRM, the Commission seeks comment on proposed changes to 
the EAS rules suggested by FEMA. FEMA indicates the changes are needed 
to ensure that the Integrated Public Alert and Warning System (IPAWS) 
Open Platform for Emergency Networks that it manages is able to provide 
maximum effectiveness now and in the future in light of the 
requirements outlined in the William M. (Mac) Thornberry National 
Defense Authorization Act for Fiscal Year 2021 (NDAA21). Specifically, 
the Commission seeks comment on FEMA's proposed rule changes 
recommending: (i) Deleting the National Information Center (NIC) event 
code from part 11 of the Commission's rules; (ii) replacing the EAS 
originator code for the ``Primary Entry Point System,'' from ``PEP,'' 
to ``NAT,'' which would stand for ``National Authority''; (iii) either 
modifying the definition for the Emergency Action Notification (EAN) 
event code from ``Emergency Action Notification (National Only),'' to 
``Emergency Alert, National,'' or replacing the EAN event code with a 
new event code called ``NEM,'' defined as ``National Emergency 
Message''; and (iv) considering methods to update the EAS to ``support 
persistent display of alert information and/or persistent notification 
for emergencies that require immediate public protective actions to 
mitigate loss of life.'' FEMA asserts that the NIC is no longer in use, 
and changing the PEP and EAN codes would prevent public confusion about 
their meaning if included in the visual scroll or audio message 
elements of an actual EAS alert. FEMA states that keeping alert 
information persistent would ensure that the pubic received the alert.

B. Legal Basis

    The proposed action is authorized pursuant to sections 1, 2, 4(i), 
4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 713 of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), and 606, as 
well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN 
Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206, Section 202 
of the Twenty-First Century Communications and Video Accessibility Act 
of 2010, as amended, 47 U.S.C. 613, and the National Defense 
Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat. 
3388, section 9201, 47 U.S.C. 1201, 1206.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, an estimate of, the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. The Commission's action may, over time, affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the SBA's 
Office of Advocacy, in general a small business is an independent 
business having fewer than 500 employees. These types of small 
businesses represent 99.9% of all businesses in the United States which 
translates to 30.7 million businesses.
    Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
Internal Revenue Service (IRS)

[[Page 46806]]

uses a revenue benchmark of $50,000 or less to delineate its annual 
electronic filing requirements for small exempt organizations. 
Nationwide, for tax year 2018, there were approximately 571,709 small 
exempt organizations in the U.S. reporting revenues of $50,000 or less 
according to the registration and tax data for exempt organizations 
available from the IRS.
    Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate that there 
were 90,056 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 36,931 General purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,040 special purpose governments--independent school 
districts with enrollment of less than 50,000. Accordingly, based on 
the 2017 U.S. Census of Governments data, the Commission estimates that 
at least 48,971 entities fall into the category of ``small governmental 
jurisdictions.''
    Radio Stations. This Economic Census category comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources.'' The SBA has 
established a small business size standard for this category as firms 
having $41.5 million or less in annual receipts. Economic Census data 
for 2012 show that 2,849 radio station firms operated during that year. 
Of that number, 2,806 firms operated with annual receipts of less than 
$25 million per year, 17 with annual receipts between $25 million and 
$49,999,999 million and 26 with annual receipts of $50 million or more. 
Therefore, based on the SBA's size standard, the majority of such 
entities are small entities.
    In addition to the U.S. Census Bureau's data, based on Commission 
data the Commission estimates that there are 4,560 licensed AM radio 
stations, 6,704 commercial FM radio stations and 8,339 FM translator 
and booster stations. The Commission has also determined that there are 
4,196 noncommercial educational (NCE) FM radio stations. The Commission 
however does not compile and does not otherwise have access to 
information on the revenue of NCE stations that would permit it to 
determine how many such stations would qualify as small entities under 
the SBA size standard.
    The Commission also notes that in assessing whether a business 
entity qualifies as small under the above definition, business control 
affiliations must be included. The Commission's estimate therefore 
likely overstates the number of small entities that might be affected 
by its action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. In addition, 
to be determined a ``small business,'' an entity may not be dominant in 
its field of operation. The Commission further notes that it is 
difficult at times to assess these criteria in the context of media 
entities, and the estimate of small businesses to which these rules may 
apply does not exclude any radio station from the definition of a small 
business on these bases, thus the Commission's estimate of small 
businesses may therefore be over-inclusive. Also, as noted above, an 
additional element of the definition of ``small business'' is that the 
entity must be independently owned and operated. The Commission notes 
that it is difficult at times to assess these criteria in the context 
of media entities and the estimates of small businesses to which they 
apply may be over-inclusive to this extent.
    FM Translator Stations and Low-Power FM Stations. FM translators 
and Low Power FM Stations are classified in the category of Radio 
Stations and are assigned the same NAICS Code as licensees of radio 
stations. This U.S. industry, Radio Stations, comprises establishments 
primarily engaged in broadcasting aural programs by radio to the 
public. Programming may originate in their own studio, from an 
affiliated network, or from external sources. The SBA has established a 
small business size standard which consists of all radio stations whose 
annual receipts are $38.5 million dollars or less. U.S. Census Bureau 
data for 2012 indicate that 2,849 radio station firms operated during 
that year. Of that number, 2,806 operated with annual receipts of less 
than $25 million per year, 17 with annual receipts between $25 million 
and $49,999,999 million and 26 with annual receipts of $50 million or 
more. Therefore, based on the SBA's size standard the Commission 
concludes that the majority of FM Translator Stations and Low Power FM 
Stations are small.
    The Commission notes again, however, that in assessing whether a 
business concern qualifies as ``small'' under the above definition, 
business (control) affiliations must be included. Because the 
Commission does not include or aggregate revenues from affiliated 
companies in determining whether an entity meets the applicable revenue 
threshold, its estimate of the number of small radio broadcast stations 
affected is likely overstated. In addition, as noted above, one element 
of the definition of ``small business'' is that an entity would not be 
dominant in its field of operation. The Commission is unable at this 
time to define or quantify the criteria that would establish whether a 
specific radio broadcast station is dominant in its field of operation. 
Accordingly, the Commission's estimate of small radio stations 
potentially affected by the rule revisions discussed in the FNPRM 
includes those that could be dominant in their field of operation. For 
this reason, such estimate likely is over-inclusive.
    Television Broadcasting. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA has created the following 
small business size standard for such businesses: Those having $41.5 
million or less in annual receipts. The 2012 Economic Census reports 
that 751 firms in this category operated in that year. Of that number, 
656 had annual receipts of $25,000,000 or less, and 25 had annual 
receipts between $25,000,000 and $49,999,999. Based on this data, the 
Commission therefore estimates that the majority of commercial 
television broadcasters are small entities under the applicable SBA 
size standard.
    The Commission has estimated the number of licensed commercial 
television stations to be 1,368. According to Commission staff review 
of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on 
November 16, 2017, 1,258 stations (or about 91 percent) had revenues of 
$38.5 million or less, and therefore these licensees qualified as small 
entities under the SBA definition. In addition, the Commission has 
estimated the number of licensed noncommercial educational television 
stations to be 390. Notwithstanding, the Commission does not compile 
and otherwise does not have access to information on the

[[Page 46807]]

revenue of NCE stations that would permit it to determine how many such 
stations would qualify as small entities. There are also 2,246 low 
power television stations, including Class A stations (LPTV), and 3,543 
TV translator stations. Given the nature of these services, the 
Commission will presume that all of these entities qualify as small 
entities under the above SBA small business size standard.
    The Commission notes, however, that in assessing whether a business 
concern qualifies as ``small'' under the above definition, business 
(control) affiliations must be included. The Commission's estimate, 
therefore, likely overstates the number of small entities that might be 
affected by its action, because the revenue figure on which it is based 
does not include or aggregate revenues from affiliated companies. In 
addition, another element of the definition of ``small business'' 
requires that an entity not be dominant in its field of operation. The 
Commission is unable at this time to define or quantify the criteria 
that would establish whether a specific television broadcast station is 
dominant in its field of operation. Accordingly, the estimate of small 
businesses to which rules may apply does not exclude any television 
station from the definition of a small business on this basis and is 
therefore possibly over-inclusive. Also, as noted above, an additional 
element of the definition of ``small business'' is that the entity must 
be independently owned and operated. The Commission notes that it is 
difficult at times to assess these criteria in the context of media 
entities and its estimates of small businesses to which they apply may 
be over-inclusive to this extent.
    Cable and Other Subscription Programming. The U.S. Census Bureau 
defines this industry as establishments primarily engaged in operating 
studios and facilities for the broadcasting of programs on a 
subscription or fee basis. The broadcast programming is typically 
narrowcast in nature (e.g., limited format, such as news, sports, 
education, or youth-oriented). These establishments produce programming 
in their own facilities or acquire programming from external sources. 
The programming material is usually delivered to a third party, such as 
cable systems or direct-to-home satellite systems, for transmission to 
viewers. The SBA size standard for this industry establishes as small, 
any company in this category which receives annual receipts of $41.5 
million or less. According to 2012 U.S. Census Bureau data, 367 firms 
operated for the entire year. Of that number, 319 operated with annual 
receipts of less than $25 million a year and 48 firms operated with 
annual receipts of $25 million or more. Based on this data, the 
Commission estimates that the majority of firms operating in this 
industry are small.
    Cable System Operators (Rate Regulation Standard). The Commission 
has developed its own small business size standards for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. 
Industry data indicate that there are 4,600 active cable systems in the 
United States. Of this total, all but five cable operators nationwide 
are small under the 400,000-subscriber size standard. In addition, 
under the Commission's rate regulation rules, a ``small system'' is a 
cable system serving 15,000 or fewer subscribers. Commission records 
show 4,600 cable systems nationwide. Of this total, 3,900 cable systems 
have fewer than 15,000 subscribers, and 700 systems have 15,000 or more 
subscribers, based on the same records. Thus, under this standard as 
well, the Commission estimates that most cable systems are small 
entities.
    Cable System Operators (Telecom Act Standard). The Communications 
Act of 1934, as amended, also contains a size standard for small cable 
system operators, which is ``a cable operator that, directly or through 
an affiliate, serves in the aggregate fewer than one percent of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' As of 2019, there were approximately 48,646,056 basic 
cable video subscribers in the United States. Accordingly, an operator 
serving fewer than 524,037 subscribers shall be deemed a small operator 
if its annual revenues, when combined with the total annual revenues of 
all its affiliates, do not exceed $250 million in the aggregate. Based 
on available data, the Commission finds that all but nine incumbent 
cable operators are small entities under this size standard. The 
Commission notes that it neither requests nor collects information on 
whether cable system operators are affiliated with entities whose gross 
annual revenues exceed $250 million. Although it seems certain that 
some of these cable system operators are affiliated with entities whose 
gross annual revenues exceed $250 million, the Commission is unable at 
this time to estimate with greater precision the number of cable system 
operators that would qualify as small cable operators under the 
definition in the Communications Act.
    Satellite Telecommunications. This category comprises firms 
``primarily engaged in providing telecommunications services to other 
establishments in the telecommunications and broadcasting industries by 
forwarding and receiving communications signals via a system of 
satellites or reselling satellite telecommunications.'' Satellite 
telecommunications service providers include satellite and earth 
station operators. The category has a small business size standard of 
$35 million or less in average annual receipts, under SBA rules. For 
this category, U.S. Census Bureau data for 2012 show that there was a 
total of 333 firms that operated for the entire year. Of this total, 
299 firms had annual receipts of less than $25 million. Consequently, 
the Commission estimates that the majority of satellite 
telecommunications providers are small entities.
    All Other Telecommunications. The ``All Other Telecommunications'' 
category is comprised of establishments that are primarily engaged in 
providing specialized telecommunications services, such as satellite 
tracking, communications telemetry, and radar station operation. This 
industry also includes establishments primarily engaged in providing 
satellite terminal stations and associated facilities connected with 
one or more terrestrial systems and capable of transmitting 
telecommunications to, and receiving telecommunications from, satellite 
systems. Establishments providing internet services or voice over 
internet protocol (VoIP) services via client-supplied 
telecommunications connections are also included in this industry. The 
SBA has developed a small business size standard for ``All Other 
Telecommunications,'' which consists of all such firms with gross 
annual receipts of $32.5 million or less. For this category, U.S. 
Census data for 2012 show that there were 1,442 firms that operated for 
the entire year. Of these firms, a total of 1,400 had gross annual 
receipts of less than $25 million. Thus, the Commission estimates that 
the majority of ``All Other Telecommunications'' firms potentially 
affected by its action can be considered small.
    Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the

[[Page 46808]]

microwave frequencies of the Broadband Radio Service (BRS) and 
Educational Broadband Service (EBS) (previously referred to as the 
Instructional Television Fixed Service (ITFS)).
    BRS--In connection with the 1996 BRS auction, the Commission 
established a small business size standard as an entity that had annual 
average gross revenues of no more than $40 million in the previous 
three calendar years. The BRS auctions resulted in 67 successful 
bidders obtaining licensing opportunities for 493 Basic Trading Areas 
(BTAs). Of the 67 auction winners, 61 met the definition of a small 
business. BRS also includes licensees of stations authorized prior to 
the auction. At this time, the Commission estimates that of the 61 
small business BRS auction winners, 48 remain small business licensees. 
In addition to the 48 small businesses that hold BTA authorizations, 
there are approximately 86 incumbent BRS licensees that are considered 
small entities (18 incumbent BRS licensees do not meet the small 
business size standard). After adding the number of small business 
auction licensees to the number of incumbent licensees not already 
counted, there are currently approximately 133 BRS licensees that are 
defined as small businesses under either the SBA or the Commission's 
rules.
    In 2009, the Commission conducted Auction 86, the sale of 78 
licenses in the BRS areas. The Commission offered three levels of 
bidding credits: (i) A bidder with attributed average annual gross 
revenues that exceed $15 million and do not exceed $40 million for the 
preceding three years (small business) received a 15 percent discount 
on its winning bid; (ii) a bidder with attributed average annual gross 
revenues that exceed $3 million and do not exceed $15 million for the 
preceding three years (very small business) received a 25 percent 
discount on its winning bid; and (iii) a bidder with attributed average 
annual gross revenues that do not exceed $3 million for the preceding 
three years (entrepreneur) received a 35 percent discount on its 
winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. 
Of the ten winning bidders, two bidders that claimed small business 
status won 4 licenses; one bidder that claimed very small business 
status won three licenses; and two bidders that claimed entrepreneur 
status won six licenses.
    EBS--Educational Broadband Service has been included within the 
broad economic census category and SBA size standard for Wired 
Telecommunications Carriers since 2007. Wired Telecommunications 
Carriers are comprised of establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA's small business size standard for this 
category is all such firms having 1,500 or fewer employees. U.S. Census 
Bureau data for 2012 show that there were 3,117 firms that operated 
that year. Of this total, 3,083 operated with fewer than 1,000 
employees. Thus, under this size standard, the majority of firms in 
this industry can be considered small. In addition to Census data, the 
Commission's Universal Licensing System indicates that as of October 
2014, there are 2,206 active EBS licenses. The Commission estimates 
that of these 2,206 licenses, the majority are held by non-profit 
educational institutions and school districts, which are by statute 
defined as small businesses.
    Direct Broadcast Satellite (``DBS'') Service. DBS service is a 
nationally distributed subscription service that delivers video and 
audio programming via satellite to a small parabolic ``dish'' antenna 
at the subscriber's location. DBS is included in the category of 
``Wired Telecommunications Carriers.'' The Wired Telecommunications 
Carriers industry comprises establishments primarily engaged in 
operating and/or providing access to transmission facilities and 
infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or combination of technologies. Establishments in this industry use the 
wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution; and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry. The SBA size standard considers a wireline business is 
small if it has fewer than 1,500 employees. U.S. Census Bureau data for 
2012 indicates that 3,117 wireline companies were operational during 
that year. Of that number, 3,083 operated with fewer than 1,000 
employees. Based on that data, the Commission concludes that the 
majority of wireline firms are small under the applicable SBA standard. 
Currently, however, only two entities provide DBS service, which 
requires a great deal of capital for operation: DIRECTV (owned by AT&T) 
and DISH Network. DIRECTV and DISH Network each report annual revenues 
that are in excess of the threshold for a small business. Accordingly, 
the Commission must conclude that internally developed FCC data are 
persuasive that, in general, DBS service is provided only by large 
firms.
    Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, U.S. 
Census Bureau data for 2012 show that there were 967 firms that 
operated for the entire year. Of this total, 955 firms had employment 
of 999 or fewer employees, and 12 firms had employment of 1,000 
employees or more. Thus, under this category and the associated size 
standard, the Commission estimates that the majority of wireless 
telecommunications carriers (except satellite) are small entities.
    AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-
1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 
2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the Commission has 
defined a ``small business'' as an entity with average annual gross 
revenues for the preceding three years not exceeding $40 million, and a 
``very small business'' as an entity with average annual gross revenues 
for the preceding three years not exceeding $15 million. For AWS-2 and 
AWS-3, although the Commission does not know for certain which entities 
are likely to apply for these frequencies, it notes that the AWS-1 
bands are comparable to those used for cellular service and personal 
communications service. The Commission has not yet adopted size 
standards for the AWS-2 or AWS-3 bands but proposes to treat both AWS-2 
and AWS-3 similarly to broadband PCS service and AWS-1 service due to 
the comparable capital requirements

[[Page 46809]]

and other factors, such as issues involved in relocating incumbents and 
developing markets, technologies, and services.
    Narrowband Personal Communications Services. Two auctions of 
narrowband personal communications services (PCS) licenses have been 
conducted. To ensure meaningful participation of small business 
entities in future auctions, the Commission has adopted a two-tiered 
small business size standard in the Narrowband PCS Second Report and 
Order. Through these auctions, the Commission has awarded a total of 41 
licenses, out of which 11 were obtained by small businesses. A ``small 
business'' is an entity that, together with affiliates and controlling 
interests, has average gross revenues for the three preceding years of 
not more than $40 million. A ``very small business'' is an entity that, 
together with affiliates and controlling interests, has average gross 
revenues for the three preceding years of not more than $15 million. 
The SBA has approved these small business size standards.
    Broadband Personal Communications Service. The broadband personal 
communications service (PCS) spectrum is divided into six frequency 
blocks designated A through F, and the Commission has held auctions for 
each block. The Commission initially defined a ``small business'' for 
C- and F-Block licenses as an entity that has average gross revenues of 
$40 million or less in the three previous calendar years. For F-Block 
licenses, an additional small business size standard for ``very small 
business'' was added and is defined as an entity that, together with 
its affiliates, has average gross revenues of not more than $15 million 
for the preceding three calendar years. These standards defining 
``small entity'', in the context of broadband PCS auctions, have been 
approved by the SBA. No small businesses within the SBA-approved small 
business size standards bid successfully for licenses in Blocks A and 
B. There were 90 winning bidders that claimed small business status in 
the first two C-Block auctions. A total of 93 bidders that claimed 
small business status won approximately 40 percent of the 1,479 
licenses in the first auction for the D-, E-, and F-Blocks. On April 
15, 1999, the Commission completed the reauction of 347 C-, D-, E-, and 
F-Block licenses in Auction No. 22. Of the 57 winning bidders in that 
auction, 48 claimed small business status and won 277 licenses.
    On January 26, 2001, the Commission completed the auction of 422 C- 
and F-Block Broadband PCS licenses in Auction No. 35. Of the 35 winning 
bidders in that auction, 29 claimed small business status. Subsequent 
events concerning Auction No. 35, including judicial and agency 
determinations, resulted in a total of 163 C- and F-Block licenses 
being available for grant. On February 15, 2005, the Commission 
completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction 
No. 58. Of the 24 winning bidders in that auction, 16 claimed small 
business status and won 156 licenses. On May 21, 2007, the Commission 
completed an auction of 33 licenses in the A-, C-, and F-Blocks in 
Auction No. 71. Of the 12 winning bidders in that auction, five claimed 
small business status and won 18 licenses. On August 20, 2008, the 
Commission completed the auction of 20 C-, D-, E-, and F-Block 
Broadband PCS licenses in Auction No. 78. Of the eight winning bidders 
for Broadband PCS licenses in that auction, six claimed small business 
status and won 14 licenses.
    Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission defined ``small business'' for the wireless 
communications services (WCS) auction as an entity with average gross 
revenues of $40 million for each of the three preceding years, and a 
``very small business'' as an entity with average gross revenues of $15 
million for each of the three preceding years. The SBA has approved 
these small business size standards. In the Commission's auction for 
geographic area licenses in the WCS there were seven winning bidders 
that qualified as ``very small business'' entities, and one that 
qualified as a ``small business'' entity.
    Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. This industry comprises establishments 
primarily engaged in manufacturing radio and television broadcast and 
wireless communications equipment. Examples of products made by these 
establishments are: Transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and 
broadcasting equipment. The SBA has established a small business size 
standard for this industry of 1,250 employees or less. U.S. Census 
Bureau data for 2012 shows that 841 establishments operated in this 
industry in that year. Of that number, 828 establishments operated with 
fewer than 1,000 employees, 7 establishments operated with between 
1,000 and 2,499 employees, and 6 establishments operated with 2,500 or 
more employees. Based on this data, the Commission concludes that a 
majority of manufacturers in this industry are small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    FEMA's recommendations proposing changes for which comment is 
sought in the Notice, if adopted, would impose additional reporting, 
recordkeeping or other compliance obligations on certain small, as well 
as other, entities required to distribute EAS alerts to the public 
(i.e., ``EAS Participants''), and that manufacture EAS equipment. At 
this time the Commission is not currently in a position to determine 
whether, if adopted, the FEMA's proposed changes will require small 
entities to hire attorneys, engineers, consultants, or other 
professionals to comply and cannot quantify the cost of compliance with 
the potential rule changes and compliance obligations raised for 
comment in the FNPRM. In the Commission's request for comments on 
FEMA's proposals, it has requested information on the cost of 
implementing the proposed changes as well as potential alternatives to 
the proposed recommendations, particularly less costly alternatives 
that should be considered.
    As proposed by FEMA, its recommendation to replace the EAS 
originator code for the ``Primary Entry Point System,'' from ``PEP,'' 
to ``NAT,'' which would stand for ``National Authority,'' and to modify 
the definition for the EAN event code from ``Emergency Action 
Notification (National Only),'' to ``Emergency Alert National,'' or 
replace the EAN event code with a new event code called ``NEM,'' 
defined as ``National Emergency Message,'' would require EAS equipment 
manufacturers to develop software updates to implement the new codes in 
deployed EAS equipment and EAS equipment in production. EAS 
Participants would also be required to acquire and install a software 
update to change the codes in their EAS devices. Some EAS device models 
currently in deployment might not be capable of being updated to 
reflect the new codes, and those devices will have to be replaced. 
Updating or replacing deployed devices to reflect these proposed FEMA 
code changes would be at the expense of EAS Participants.
    FEMA has also recommended that the Commission consider methods to

[[Page 46810]]

update the EAS to ``support persistent display of alert information 
and/or persistent notification for emergencies that require immediate 
public protective actions to mitigate loss of life.'' Updating the EAS 
to support persistent alerts would likely require extensive 
modifications to the EAS. To comply with such a requirement if adopted, 
EAS equipment manufacturers would likely be required to develop 
software and/or firmware changes to implement such functionality in 
deployed EAS equipment and EAS equipment in production. Similar to 
FEMA's code change proposal recommendations, such changes would require 
EAS Participants to acquire and install the software/firmware update to 
enable the functionality in their EAS devices, and devices currently 
deployed with EAS capabilities that are not be capable of being updated 
to reflect such functionality will have to be replaced. It is also 
possible that such functionality will require modifications to non-EAS 
equipment that receive and process the EAS device alert content output 
and convert it into a visual scroll. EAS Participants would also bear 
the expenses to update or replace deployed devices to enable this 
proposed EAS functionality.
    To help the Commission more fully evaluate the cost of compliance 
if it were to adopt FEMA's proposals, in the FNPRM, the Commission 
requests comments on the cost implications to implement the proposed 
recommendations and asks whether there are more efficient and less 
burdensome alternatives that might achieve the same results. the 
Commission expects the information it receives in comments, including 
cost and benefit analyses, to help it identify and evaluate relevant 
matters for small entities, including compliance costs and other 
burdens that may result if the proposed recommendations in the FNPRM 
were adopted.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant, 
specifically small business alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for such small entities; (3) the 
use of performance, rather than design, standards; and (4) and 
exemption from coverage of the rule, or any part thereof, for such 
small entities.''
    In the FNPRM, the Commission took the steps and raised for 
consideration the alternatives discussed herein which could minimize 
any significant economic impact on small entities of FEMA's recommended 
EAS proposed rules changes. Regarding FEMA's recommended event code 
rule changes, the Commission asks for comments on whether the proposed 
FEMA changes should be adopted. Where FEMA has presented two options in 
a recommendation, the Commission asks whether the proposed options are 
appropriate, and if so, what is the preferred approach. The Commission 
also inquires about the implications for EAS and other equipment, for 
other EAS and related Commission rules, and for technical and operation 
plans and protocols relating to EAS alerts. Further, the Commission 
inquires whether the proposed FEMA recommendations can be implemented 
for all EAS device models and at what costs, and whether the benefit of 
implementing the proposed changes exceed whatever costs might be 
incurred to implement them.
    The FEMA recommendation to change the EAS originator code for 
``Primary Entry Point System,'' from ``PEP,'' to ``NAT'' and to either 
modify the definition for the EAN event code from ``Emergency Action 
Notification (National Only),'' to ``Emergency Alert, National,'' or 
replace the EAN event code with a new event code called ``NEM'' would 
require EAS equipment manufacturers to develop software updates to 
implement the new code in deployed EAS equipment and EAS equipment in 
production. Such action also would require EAS Participants to acquire 
and install a software update to change the code in their EAS device. 
The Commission believes a software update imposes minimal costs for 
small and other entities, and the costs of such an action can be done 
in the normal course of business. The Commission is aware that some EAS 
device models in deployment might not be capable of being updated to 
reflect the new codes, and those devices would have to be replaced. As 
a possible alternative to a code change for EAN, the Commission asks, 
for example, whether retaining the EAN and revising its definition 
would be less costly than replacing it with a new code such as ``NEM'', 
or whether the revision of the EAN definition produce similar costs as 
a new code due to necessary technical and operational plan changes. The 
Commission also believes that should EAS event code changes be adopted, 
it may be possible to coordinate the implementation timeframe to allow 
a sufficient period of time for EAS Participants to complete the 
required installation in the normal course of the device's regularly 
scheduled maintenance and which would help minimize the cost of the 
software update.
    The FEMA recommendation for the Commission to examine methods to 
update the EAS to ``support persistent display of alert information 
and/or persistent notification for emergencies that require immediate 
public protective actions to mitigate loss of life'' does not propose 
any particular methods or define the types of emergency events that 
would qualify and, therefore, the potential costs and burdens cannot be 
quantified. It is likely, however, that any action required to 
effectuate this recommendation would require extensive modifications to 
the EAS. Therefore, as an initial matter, the Commission seeks to 
identify what EAS event types would or would not qualify and what 
updates would be required to the EAS to accommodate the ``persistent 
display of alert information and/or persistent notification'' that FEMA 
requests. Further, within its recommendation FEMA proposes that alert 
originators can cancel an alert, however, there is no mechanism in the 
EAS to cancel a legacy EAS alert, and the Commission therefore seeks 
comment on whether a proposed rule to effectuate alert cancellation 
would necessarily require changing the EAS protocol or some other facet 
of the EAS architecture which could increase the costs for small and 
other impacted entities. The Commission expects that implementing 
FEMA's persistent alert changes would require significant modifications 
to EAS devices, downstream processing equipment, cable equipment 
standards, and other equipment operated in the EAS ecosystem, and asks 
for information on the technical feasibility of FEMA's request. In 
addition, the Commission seeks information on the costs that would be 
incurred and by whom, in implementing the proposed changes, on what, if 
any, ancillary costs would be associated with modifying downstream 
equipment, and whether the costs of implementing FEMA's proposal be 
would be outweighed by any benefit of keeping the alert available to 
the public.
    In the alternative, the Commission asks commenters to consider 
whether there are less obtrusive means to achieve FEMA's proposal, such 
as

[[Page 46811]]

relying on alert originators to repeat (re-originate) alerts they deem 
significant enough to warrant such treatment. Significantly, the 
Commission raises as alternatives for comment whether FEMA's proposal 
on keeping the alert information or notification persistent is more 
appropriately configured in a next generation EAS, and whether FEMA's 
recommendation is more appropriately addressed in the Notice of Inquiry 
in this proceeding (seeking comment on internet related updates and 
improvements to the EAS).
    Throughout the FNPRM, the Commission has raised and requested 
comment on various issues relating to the technical feasibility, costs, 
benefits and the potential impact of implementing FEMA's proposed EAS 
rule changes. This information will assist with the Commission's 
evaluation of the economic impact on small entities, and to determine 
if the proposed FEMA rule changes are adopted, how to minimize any 
significant economic for small entities and will help identify 
potential alternatives not already considered. The Commission expects 
to more fully consider the economic impact and alternatives for small 
entities following the review of comments and reply comments filed in 
response to the FNPRM. Moreover, the Commission's evaluation of the 
comments will shape the final alternatives it considers, the final 
conclusions it reaches, and the actions it ultimately takes in this 
proceeding to minimize any significant economic impact that may occur 
on small entities, if any of the proposed FEMA recommendations are 
adopted.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

Ordering Clauses

    Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(o), 
301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 713 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 
154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), and 606, as 
well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN 
Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206, Section 202 
of the Twenty-First Century Communications and Video Accessibility Act 
of 2010, as amended, 47 U.S.C. 613, and the National Defense 
Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat. 
3388, section 9201, 47 U.S.C. 1201, 1206, that this Report and Order 
and Further Notice of Proposed Rulemaking in PS Docket Nos. 15-94 and 
15-91 is hereby adopted.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Further Notice of Proposed Rulemaking, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2021-15174 Filed 8-19-21; 8:45 am]
BILLING CODE 6712-01-P


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